Citation Nr: 0204176
Decision Date: 05/07/02 Archive Date: 05/14/02
DOCKET NO. 98-12 660 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for a bilateral hip
disorder, characterized as avascular necrosis, claimed as
secondary to a service-connected low back disability.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Wm. Kenan Torrans, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1974 to August
1977.
This matter arises from an April 1998 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas. The veteran's claims file was subsequently
transferred to the VARO in Muskogee, Oklahoma and the case
has been referred to the Board of Veterans Appeals (Board)
for resolution by that office.
The Board notes that service connection for a low back
disability was granted by the RO in a May 2000 rating
decision. Several statements were submitted by the veteran
subsequent to that decision in which he expressed his
dissatisfaction with several matters relating to that
decision and subsequent adjustments to his compensation
award. In June 2000 statements he appeared to indicate that
he disagreed with the rating assigned in the May 2000
decision. Although, the RO in a January 2002 rating decision
denied the veteran an increased evaluation for his low back
disability and entitlement to a total rating based on
individual unemployability due to service-connected
disability, the RO should seek clarification from the veteran
as to whether it was his intention to file a notice of
disagreement with the May 2000 decision as to the disability
percentage assigned his low back disorder. Any other
indicated action should then be accomplished by the RO.
FINDINGS OF FACT
1. The veteran was first diagnosed as having bilateral
femoral head avascular necrosis of the hips in March 1997.
2. Service connection is now in effect for a low back
disability.
3. There is no competent medical evidence of a nexus or link
between the veteran's currently diagnosed bilateral femoral
head avascular necrosis of the hips and any incident of his
active service, or to his service-connected low back
disability.
CONCLUSION OF LAW
A bilateral hip disorder, characterized as avascular
necrosis, was not incurred in or aggravated in active
military service nor is it due to, the result of, or
aggravated by the veteran's service-connected low back
disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107
(West Supp. 2001); 38 C.F.R. §§ 3.303, 3.310 (2001); 66 Fed.
Reg. 45630-45632 (Aug. 29, 2001) (to be codified as amended
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.126(a)).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran claims that he has incurred avascular necrosis of
the bilateral hips as a result of his now service-connected
low back disorder. During the pendency of this appeal,
Congress passed the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000)
(codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5016,
5107, and 5126), which, among other things, amended
38 U.S.C.A. § 5107 to eliminate the well-grounded
requirement. The VCAA is applicable to all claims filed on
or after the date of enactment, or filed before the date of
enactment and not yet final as of that date. See VCAA § 7,
subpart (a), 114 Stat. 2096, 2099; see also Karnas v.
Derwinski, 1 Vet. App. 308 (1991). To implement the
provisions of the law, VA promulgated regulations published
at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The Board
must now adjudicate the veteran's claim in light of the VCAA
and implementing regulations. Generally, where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions are likewise satisfied.
The VA has a duty to make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate his
claim for VA benefits. See 38 U.S.C.A. §§ 5103A, 5107(a)
(West Supp. 2001). This assistance specifically includes
obtaining all relevant records, private or public, adequately
identified by the claimant with proper authorization for
their receipt; obtaining any relevant evidence in federal
custody; and obtaining a medical examination or opinion where
such is necessary to make a decision on the claim. Id.
However, the ultimate responsibility for furnishing evidence
rests with the veteran. See 38 U.S.C.A. § 5103A (West Supp.
2001); 66 Fed. Reg. 45,630 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. § 3.159(c)).
Essentially, the VCAA eliminates the requirement that a
claimant must submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim. However, VA is not
required to provide assistance to a claimant if there is no
reasonable possibility that such assistance would aid in
substantiating the claim.
The VCAA also includes new notification provisions.
Specifically, it requires VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is required to inform the claimant and
the claimant's representative which evidence is to be
provided by the claimant, and which evidence, if any, VA will
attempt to obtain for the claimant.
As to whether VA has met its duty to assist the veteran in
light of the VCAA, the Board notes that although the RO did
not have the benefit of the explicit provisions of the VCAA
when the case was first adjudicated, VA's redefined duty to
assist has been fulfilled. The Board finds that the veteran
has been provided adequate notice of the evidence needed to
substantiate his claim for service connection. In that
regard, the Board concludes that the discussions as contained
in the initial rating decision, in the subsequent statement
of the case and supplemental statement of the case, in
addition to voluminous correspondence from VA to the veteran,
have provided him with sufficient information regarding the
applicable regulations and the evidence necessary to
substantiate his claim. The Board finds, therefore, that
such documents are essentially in compliance with VA's
revised notice requirements. Moreover, the Board notes that
the veteran did make arguments and submit evidence in support
of his underlying claim. Accordingly, the Board finds that
VA does not have any further outstanding duty to inform the
veteran that any additional information or evidence is
needed.
With respect to assistance with evidentiary development, the
RO has requested that all records identified by the veteran
be obtained and associated with his claims file. To that
end, the veteran has submitted numerous statements detailing
the treatment he has received for his bilateral hip and other
disorders, and the RO has undertaken to contact each of those
named health care providers in order to obtain those records.
All existing identified clinical treatment records have been
obtained and associated with the claims file, including many
duplicate copies. In addition, all of the clinical treatment
records pertaining to the veteran have been obtained from any
and all identified VA Medical Centers (VAMCs).
The Board notes that some of the veteran's service medical
records appear to be unavailable. The veteran was informed
of that situation, and attempts have been made to reconstruct
those records and to rebuild the veteran's claims folder to
the extent practicable. In June 1996, a response to the RO's
query was received from the National Personnel Records Center
(NPRC) in St. Louis, Missouri, which stated that all
available service medical records had been forwarded to the
RO in August 1991. No further records were available. In
its attempts to reconstruct the missing records, the RO has
obtained individual service treatment records from the
veteran showing that he had received treatment in service for
a back injury, and copies of a service entrance/discharge
examination. Further, attempts were made to obtain all
relevant post-service clinical treatment records. It appears
that the RO has made all reasonable attempts to obtain the
relevant records in this case. Further, in light of the fact
that the veteran's is not claiming direct service connection
for the disability at issue in this appeal but rather
secondary service connection, the Board finds that the
absence of the veteran's complete service medical records
will not affect the outcome of his appeal.
In addition, over the course of this appeal, the veteran made
several requests to be afforded the opportunity to present
testimony at a personal hearing either before a member of the
Board, or before a hearing officer at the RO. However, each
time a hearing was scheduled, and notice sent to the veteran,
he either failed to appear at the appointed times, or
canceled the hearings. Further, the RO made multiple
attempts to afford the veteran a VA rating examination to
determine the etiology of his claimed bilateral hip disorder
and to examine his back. In January 2001, the veteran was
scheduled to undergo a VA rating examination. He failed to
report at the scheduled time, and indicated that the notice
was forwarded to an incorrect address so he was unable to
appear. An additional examination was requested in May 2001
and August 2001. A statement was received from the veteran
in April 2001 indicating that he had been homeless since
October 2000. A subsequent statement from the veteran, dated
in May 2001 included four separate addresses at which he
claimed to sometimes receive mail.
Pursuant to being advised of the veteran's address, he was
sent notice to an address he provided, indicating that he was
scheduled to undergo a VA rating examination in June 2001.
However, he failed to report to that examination. The record
reflects that the veteran was again scheduled to undergo a VA
rating examination in September 2001. The letter of notice,
dated in August 2001 was sent to one of the most recent
addresses he had provided, which was also listed as the
address to which his VA disability compensation checks were
sent. As with the previous examinations, the veteran had
failed to appear as scheduled. There is no indication in the
file that any of the notices sent to the veteran were
returned due to incorrect or invalid addresses, and there is
no indication that any of his disability checks were not
received. The veteran has been informed of the consequences
of failure to report to his scheduled examinations pursuant
to 38 C.F.R. § 3.655 (2001). The Board concludes that the VA
has made reasonable attempts to afford the veteran a VA
rating examination to address whether his claimed bilateral
hip disorder was incurred as a result of his service-
connected low back disability, and that further attempts to
schedule an examination would be impracticable. Therefore,
the case must now be decided on the evidence of record.
Generally, service connection may be granted for a disability
resulting from a disease or injury incurred in or aggravated
by service. See 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001);
38 C.F.R. § 3.303(a) (2001). In addition, service connection
may be granted for a disability shown to be proximately due
to or the result of a service-connected disability. See
38 C.F.R. § 3.310(a) (2001). This regulation has been
interpreted by the United States Court of Appeals for
Veterans Claims (Court) to allow service connection for a
disorder which is either caused or aggravated by a service-
connected disability. See generally Allen v. Brown, 7 Vet.
App. 439 (1995). Service connection may also be granted for
any disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. See 38 C.F.R. § 3.303(d)
(2001). However, while the VCAA has eliminated the well-
grounded claim requirement, a medical nexus must still be
established between the claimed disability and an injury or
disease incurred in the veteran's active service or to a
service-connected disability.
As noted, the veteran claims that his bilateral hip disorder
was incurred as a result of his now service-connected low
back disability. His claim for service connection for a
bilateral hip disorder, secondary to a low back disability
was initially denied as not well grounded by an April 1998
rating decision. The veteran's claim was found to have been
not well grounded because the claimed low back disability was
not then service connected, and there was no clinical
evidence otherwise linking the bilateral hip disorder to any
event of the veteran's active service. (Service connection
for the veteran's low back disability was initially
established by a May 2000 rating decision, with an initial 10
percent evaluation effective from April 7, 1997. By that
rating decision, the veteran was also assigned a temporary
100 percent evaluation under the provisions of 38 C.F.R.
§ 4.30, effective from September 18, 1997, and a 10 percent
evaluation effective from January 1, 1998. In addition, by
that same rating decision, the veteran was assigned an
increased 40 percent evaluation, effective from February 16,
1999.).
Following issuance of the April 1998 rating decision, a
statement of the case (SOC) also dated in April 1998 was
generated by the RO although a notice of disagreement had not
been filed at that point by the veteran. That SOC included
the issue of entitlement to service connection for a
bilateral hip disorder. The veteran subsequently submitted a
VA Form 9 or substantive appeal in June 1998 in which he
expressed his disagreement as to the RO disposition on the
issue of service connection for a bilateral hip disorder. A
supplemental statement of the case (SSOC) was issued by the
RO in November 1999, and the veteran continued to submit
additional statements. The Board has construed the December
1999 statement as a timely appeal with respect to the issue
of entitlement to service connection for avascular necrosis,
claimed as secondary to a service-connected low back
disability.
The medical evidence discloses that in February 1997, the
veteran underwent an X-ray examination of his lower back. At
that time, the presence of multiple sclerotic densities
involving the femoral head on each side were indicated. The
examining physician indicated that such images suggested
potentially ischemic necrosis of the hips. In March 1997,
the veteran was diagnosed with bilateral femoral head area
avascular necrosis. While the veteran had complained in
April 1996 of experiencing hip pain on extended sitting and
standing, the clinical treatment records do not indicate any
previous complaints or diagnoses involving the veteran's
hips. In April 1997, MRI results confirmed that the veteran
had what was diagnosed as fairly advanced ischemic necrosis
of both femoral heads, and in June 1997, the veteran
underwent a left total hip replacement.
VA and private clinical treatment records dating from July
1997 through March 2000 show that the veteran underwent
treatment for a variety of psychiatric and physical
disabilities. However, to the extent that those clinical
treatment records address the veteran's bilateral hip
disorder, the records do not contain any medical opinion as
to the etiology of the bilateral hip disorder. Moreover,
those records fail to contain any medical opinion suggesting
that the veteran's bilateral hip disorder was incurred as a
result of the veteran's service or his service-connected low
back disability. While in February 1997, low back X-rays
disclosed the presence of the sclerotic densities involving
both femoral heads, the records note that such disclosure was
only observed incidental to the low back pathology, and no
link between the two disorders was implied or suggested.
As noted, the veteran was repeatedly afforded the opportunity
to undergo a VA rating examination to evaluate the etiology
of his bilateral hip disorder, but he failed to appear at any
of the scheduled examinations, most recently without offering
any sort of explanation for his failure to report.
Therefore, any further information which might have been
beneficial to his claim for service connection could not be
developed. The veteran's claim must now be decided on the
basis of the evidence which is currently available and
currently of record.
The Board has evaluated the foregoing, and must conclude that
the evidence fails to establish that the veteran's bilateral
hip disorder, diagnosed as avascular necrosis is due to, the
result of, or aggravated by the veteran's now service-
connected low back disability, or due to any other incident
of his active service. The Board acknowledges that the
veteran currently suffers from avascular necrosis of the
hips, and that he has undergone a total left hip replacement.
The Board also recognizes that service connection has been
established for a low back disability, which has been
characterized as lumbar disc disease with status-post L5-S1
laminectomy and fusion. However, there is no medical
evidence of record to suggest a nexus or link between the
diagnosed bilateral hip disorder and the service-connected
low back disability or any other incident of the veteran's
military service. The medical evidence shows that the
avascular necrosis of the femoral heads was first diagnosed
in March 1997, and in April 1997 was shown to be of an
advanced degree.
While showing a diagnosis of avascular necrosis of the
bilateral hips, and providing a chronology of the treatment
for such disorder, the clinical treatment records do not
suggest or otherwise contain any medical opinion indicating
that the bilateral hip disorder was incurred as a result of
the veteran's service or a service-connected low back
disability. Accordingly, absent any sort of medical evidence
of a nexus or link between the bilateral hip disorder and the
veteran's service to include a service-connected low back
disability, the veteran's claim for service connection must
be denied.
In reaching this conclusion, the Board does not doubt the
sincerity of the veteran's belief that his bilateral hip
disorder is due to his now service-connected low back
disability. However, such statements to that effect by the
veteran do not constitute medical evidence. As a layperson,
lacking in medical training and expertise, the veteran is not
competent to render an opinion or to address an issue
requiring medical training or expertise, to include medical
diagnoses or opinions as to medical etiology. See generally
Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus, the Board
finds that the veteran's contentions, by themselves, cannot
be accepted as significantly probative evidence in this
regard.
The Board concludes that the preponderance of the evidence is
against the claim of entitlement to service connection for a
bilateral hip disorder characterized as avascular necrosis,
secondary to the service-connected low back disability. In
reaching this decision, the Board has considered the doctrine
of reasonable doubt. However, as the preponderance of the
evidence is against the veteran's claim for service
connection, the doctrine is not for application. See Gilbert
v. Derwinski, 1 Vet. App. 49 (1999).
ORDER
Service connection for a bilateral hip disorder characterized
as avascular necrosis, claimed as secondary to a service-
connected low back disability is denied.
S. L. KENNEDY
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.